Criminal Lawyers for Criminal Appeals

Criminal appeals (recursos en materia penal) provide defendants with the right to have their conviction and sentence reviewed by a higher court. The Spanish criminal appeal system offers multiple levels of review: ordinary appeal (apelación) before the Provincial Court, cassation appeal (casación) before the Supreme Court, and ultimately, the constitutional appeal (amparo) before the Constitutional Court.

Grounds for Appeal

Criminal appeals can be based on: procedural violations (denial of evidence, violation of the right to defense, biased judge); errors in the assessment of evidence (the facts were proven incorrectly); errors in legal classification (the proven facts do not constitute the crime charged); sentencing errors (the penalty does not correspond to the offense); and constitutional rights violations (presumption of innocence, right to a fair trial, effective judicial protection).

The 2015 Reform: Second Instance and Cassation

Act 41/2015 profoundly reshaped criminal cassation by generalising the second instance and reserving cassation for control of the correct application of the law. Following the reform, the following are open to cassation: judgments issued on appeal by the Civil and Criminal Chambers of the High Courts of Justice and by the Provincial Courts; National High Court judgments; and decisions ending the proceedings for procedural defects. Where a first-instance judgment is not yet final, the prior route is the appeal (apelación) before the High Court of Justice or the Provincial Court.

Grounds for Cassation (Arts. 849-852 LECrim)

Cassation may be founded on: infringement of law (Art. 849.1 LECrim) for an error of law applied to the intangible proven facts; error in the assessment of evidence (Art. 849.2) based on documents demonstrating the adjudicator's mistake; procedural breach (Arts. 850-851) for essential defects causing defencelessness; and infringement of a constitutional provision (Art. 852), notably the presumption of innocence and effective judicial protection. For appeals against minor-offence judgments, the reform added the requirement of cassational interest (conflict with Supreme Court doctrine or divergence between Provincial Courts).

Procedure, Deadlines and Reformatio in Peius

The procedure has two phases: preparation, filed within five days of notification before the sentencing court and identifying the grounds; and formalisation before the Supreme Court's Second Chamber, developing the grounds with the signature of lawyer and court representative. A key safeguard applies: when only the convicted person appeals, the prohibition of reformatio in peius prevents the sentence from being worsened. If the Court upholds an infringement-of-law ground, it may issue a second judgment rather than remit the case.

Our Cassational Strategy

Success in cassation depends on correctly identifying the viable grounds, technical precision in their formulation (exact citation of the infringed provision and the relevant passages of the challenged judgment), solid argument with up-to-date Supreme Court and Constitutional Court case-law, and expository economy. We act before the Second Chamber of the Supreme Court in appeals against judgments of Provincial Courts, High Courts of Justice and the National High Court.

Our Appellate Practice

We specialize in identifying appellate issues during the trial itself—many appeals are won or lost at the trial stage when objections are or are not properly preserved. Our approach includes: meticulous review of the trial record (transcripts, rulings, evidence); identification of prejudicial errors that affected the outcome; preparation of persuasive written briefs focused on legal arguments rather than factual rehashing; and oral advocacy before appellate panels.

Procedural stages and deadlines of the cassation appeal

A criminal cassation appeal unfolds in two distinct moments that should not be conflated. First, preparation: once the contested judgment is served, the party has five days to file, before the very court that issued it, a written notice announcing the intention to appeal and identifying the grounds under Article 847 LECrim that will be invoked. This step is strict; failing to take it, or filing it out of time, closes the route entirely. The trial court then checks that the formal requirements are met and, if satisfied, declares the appeal prepared and summons the parties.

Once summoned, the second stage opens: the formal lodging of the appeal before the Second Chamber (Criminal Chamber) of the Supreme Court, generally within fifteen days of the summons. The pleading must set out each ground separately, citing the provision that supports it and developing a self-contained argument. Representation requires a court agent (procurador) and a lawyer's legal direction. After lodging, the Public Prosecutor and the other parties may oppose or join the appeal, and the Chamber rules on admission before, where appropriate, scheduling a hearing or a vote and decision.

The grounds of cassation and the competent body

Criminal cassation is not a second appeal allowing a free re-examination of the facts: it is an extraordinary remedy with a closed list of grounds. Article 849.1 LECrim covers the infringement of substantive law, that is, the wrongful application or non-application of a criminal provision to facts that have been declared proven and must be respected as they stand. Article 849.2 allows a party to allege error in the assessment of evidence where this results from genuine documents not contradicted by other material. Articles 850 and 851 address breaches of procedural form, covering defects such as the improper refusal of evidence, inconsistency, or a lack of clarity in the statement of facts.

Article 852 LECrim, in turn, opens cassation to the violation of fundamental rights, the channel through which the courts examine, among others, the presumption of innocence, effective judicial protection, and the right to a trial with full safeguards. The body competent to hear the appeal is always the Criminal Chamber of the Supreme Court. Pinpointing the ground and fitting each complaint within the correct provision is decisive: a ground that is wrongly framed, or that seeks to re-weigh the evidence under the guise of an error of law, will usually lead to inadmission.

Cassation after the 2015 reform: the channel against appeal judgments

Law 41/2015 brought a significant change to the system of remedies. Previously, many judgments issued by the Provincial Courts (Audiencias Provinciales) and by the Criminal Courts (Juzgados de lo Penal) had no access to the Supreme Court. After the reform, a full second instance through appeal became general and, at the same time, a cassation channel was opened against judgments delivered on appeal by the Provincial Courts in cases tried by the Criminal Courts. This new access aims to let the Supreme Court unify the interpretation of criminal law in an area previously closed to it.

That said, it is a limited channel. Cassation against these appeal judgments is confined, as a general rule, to the ground of infringement of law under Article 849.1 LECrim, that is, the correct application of substantive law, without opening the door to a fresh assessment of the evidence. Its purpose is essentially to safeguard the law: to set interpretive criteria and bring legal certainty to the application of criminal offences. For this reason, when designing strategy it is essential to distinguish whether the contested decision comes from a first-instance trial before the Provincial Court or from an appeal, because that determines which grounds remain available.

Defence strategy and the party's rights in cassation

A sound defence in cassation begins long before the lodging pleading. Because the remedy is extraordinary, it helps to have already laid down the relevant objections and reservations at trial: a piece of evidence refused without a formal objection, or a violation not raised at the proper time, will rarely succeed later. The technical work consists of sifting through the judgment, separating what is a genuine legal question from what is mere disagreement with the court's assessment, and fitting each complaint into the appropriate ground, avoiding the mixing of heterogeneous grounds within a single heading.

Throughout the procedure the party retains essential safeguards: the right to legal assistance, to a trial with full guarantees, to equality of arms with the Public Prosecutor, and to obtain a reasoned decision. Faced with inadmission or an unfavourable Supreme Court judgment, where the prior judicial route has been exhausted and there is an infringement of a fundamental right amenable to constitutional protection, the option remains, where appropriate, to turn to the Constitutional Court, and even, once the domestic route is exhausted, to international human-rights bodies. Chaining these remedies correctly requires planning the legal reasoning from the very first appeal.